Public Servants and the Constitutionally Implied Freedom of Political Communication

Mr Towell journalist, who writes for the Public Service Informant in the Canberra Times, wrote on 30 May 2016, that the CPSU is claiming that “Public servants are being silenced by a politically motivated push to keep them from speaking out ahead of July’s federal election”.

According to Mr Towell, the CPSU has warned public servants to watch their Facebook likes and shares during the election campaign. Apparently, Defence Force personnel have been told they will be punished if caught electioneering in uniform.

One would assume that this warning forms part of the union’s own recently published guide on how public servants can make political statements and keep their jobs. And here is the problem – the conflating of three significant elements: public servants; political statements; job security.

For a young public servant who has a mortgage to pay and children to send to school, there is something rather terrifying at this conflation of elements. Yet, there is nothing in Mr Towell’s article that will assist the public servant to understand the true situation here, and will assume that it is better to steer clear of any political communication for who would want to risk, their livelihood just for expressing a political opinion. By doing so, that public servant succeeds in disenfranchising himself from the political process. That’s how people are silenced.

The really alarming aspect of Mr Towell’s article, and of the persons he quotes, is that there is no mention at all of the Constitutionally Implied Freedom of Political Communication. Yet, it is the very thing that would give a public servant clarity and hope.

While in the Banerji v Bowles 2013 case, the court did not see itself fit to make a declaration on this particular point, in the recent case of Gaynor v ADF 2015, the court upheld the constitutionally implied freedom of political communication. This was a huge win for all public servants, yet the CPSU has made no comment about this at all as far as I know, nor has the APSC made any comment as far as I know. I guess that it is not in their interest to make anything of that decision, for by doing so they would lose the very strategic tool, the very stranglehold, which they can use to keep public servants silenced.

I would say to Mr Towell, to Ms Flood and to Mr Lloyd, that it is you who are complicit in denying public servants the freedom of political communication through your failure to clearly articulate the decision of the court.

Like it or not, understand it completely or not, in Australia, the court has upheld the constitutionally Implied Freedom of Political Communication for public servants to engage in the political process as private citizens.

What this means is that public servants may use their own social media platforms, to speak as private citizens, to make comment in the political process, and they may not be punished for doing so. The argument that the APS Code of Conduct prescribes certain behaviour does not trump the constitutional freedom.

Yet, these lies, these ambiguities, these “trip-wires” are peddled by those who have the most to lose, and those who have the largest responsibility to convey the truth about the situation.

Ms Nadine Flood of the CPSU, Mr John Lloyd of the APSC and Mr Towell journalist for the Canberra Times, are betraying public servants and the general public by failing to use their power and authority to tell the truth about the freedom of public servants to participate in the political process as a private citizen.

These are three players who are involved in silencing public servants. None of them are telling the truth about right of public servants to engage in the political process as private citizens. They are three agencies who are peddling a vicious lie upon the public and who should know better. It is incumbent upon Mr John Lloyd and Ms Flood and Mr Towell to accurately understand, and to accurately address the constitutionally implied freedom of political communication for public servants as private citizens. Only by doing so may they remove the Damocles Sword from over the heads of pubic servants—that is, if they really wish to do so.

It is a travesty of our political freedoms to suggest to public servants that they may not engage in the electoral process as private citizens. To do so during an election campaign is entirely perfidious.

This paradigm obtains regardless whether the abuse is sexual abuse, or abuse in the family, or abuse at the workplace, or where a public authority makes an adverse decision, which is wrong in law, causing harm.

On abuse, the abused suffers harm

Compounding the harm, the abused suffers shock and awe

The abused experiences intrapersonal conflict, with need to trust the abuser

The abused experiences intrapersonal conflict in respect to the power of the abuser

The abused experiences intrapersonal conflict with the abuser’s implied and expressed threats to the abused, demanding silence, compliance and conspiracy

The abused is not successful or availed of alternative authority to confide the abuse, with subsequent compounding intrapersonal conflict, compounding the harm

The intrapersonal conflict interferes with the capacity of the abused to function, thus further compounding the harm

The abused evidences strange behaviour such as withdrawal, or self-harm such as cutting, anorexia, bulimia, acting out, aggression to others, methods of intrapersonal relief in response to internalising rage that should properly be expressed towards the abuser

When the torment is unbearable, the abused may be forced to take action against the abuser

Where the abused is not able to do this, an observer may notice the “strange” behaviour of the abused, and in doing so, may be drawn to assist the abused

The advocate encourages the abused to take steps to call out the abuser, but if the abused is not capable of doing so, will advocate for the abused.

There will be repercussions by the abuser after attempts to call out the actions of the abuser – those repercussions can take many forms

Those defensive actions of the abuser to defend the wrongdoing are in response to the fear of discovery and sanction

The abused experiences relief in having a trusted authority to advocate on behalf of the abused.

The abused experiences relief in stating the case to the advocate

The abused experiences relief in the possibility for the abuser to be called to account

If action is successful, the abused experiences relief in seeing the abuser being sanctioned

The abused experiences the relief of validation of the events, and on the sanction being imposed on the abuser.

The abused will experience the beginning of healing, renewal and recovery

Paradoxically, the abused will experiences sadness and grief at having cast a light onto the abuse and the abuser, and seeing the truth of the events, affirming the integrity of the abused

The abused will experience the publication of the events as a public affirmation of personal integrity

The abused will experience relief and validation on the punishment, imprisonment, fines, or compensation, or order for exemplary damages, however defined, and payable by the abuser

In my recent conversations with colleagues on my preferred social media platform, Twitter, I note a change – or at least, an emerging narrative, on asylum seekers, and by implication, on all persons who have sought to immigrate to this country over the years.

The proposition is that by denigrating asylum seekers, we also denigrate, by association and implication, all persons and their descendants, who have left their homeland to come to this country.

By the politics of distraction, political discourse has created a narrative to depict asylum seekers as “undesirables”. They are “illegal”; they are not refugees but economic migrants; they are Muslim; they do not integrate; they only want our welfare; it is a burden on the taxpayer; we have homeless and unemployed; they run mosques and private schools so as to promulgate their hateful attitude to western society”.

Psychoanalytically speaking, a society evolves along the same trajectory as an individual person.

We evolve from the thought patterns and behaviours of our past. We attend school to learn about others; to learn skills and develop talents; learn to communicate in order to understand the experience of others.

We seek counselling, either formal or informal, we undergo psychoanalysis or cognitive behaviour therapy; we participate in consciousness raising through groups; we read the thoughts of others in books and learn from them; we participate in social media.

Many of us who have been raised according to the strict regimes of religion such as Judaism, Christianity or Islam, even while drawing comfort and identity from them, have grown up to reject those teachings as being an impediment to psychological functioning in a secular society.

It’s important to remember that Australia is a secular society. Our constitution defines it as such.

In section 116 of the Commonwealth of Australia Constitution Act, we find that the Commonwealth is not to legislate in respect of religion:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

It is a simple clause, but very powerful in its effects.

While immigrants to this country live their lives in exile from their country of birth, and all that is their heritage, they bear children and raise and educate them in their host society. They build businesses, create wealth, consume goods, share cultural practice and grow old, some never seeing nr living in their place of birth ever again.

As they struggle to learn a new language to whatever proficiency their experience permits them, they may forget, or lose touch with, their first language, thus falling in to a situation where they have little proficiency in both.

Grandparents cannot communicate with their grandchildren and grandchildren cannot communicate with their grandparents.

Yet, all this happens in silence. To suffer in silence is truly the experience of many immigrants and their children who are aware of their parents suffering, as they observe them in daily life or accompany them to the doctors’ rooms or the lawyer’s office.

It is one of the reasons that children of immigrants enter a professional life.

It is a common thing for children to grow up to meet the needs of their parents. The child of immigrants who have experienced injustice in their lives may train to be a lawyer. The child of parents who suffered ill health will become a nurse or doctor. A child whose parents suffered psychologically may become a psychoanalyst or psychologist. A child of parents who suffered illiteracy may become a teacher. A child of parents who suffered poverty may establish a business.

The point is, that people evolve. That is all. And as people evolve, so does society evolve.

Immigrants have shown their capacity for personal and material evolution, and one can be sure that, psychoanalytically speaking, so will all immigrants to this country including asylum seekers, whatever beliefs they may hold on arrival.

While it may be said that immigrants of the Muslim faith do not integrate, this assertion contradicts the evidence. Indeed, they may well be glad to be free from those religious constraints in a secular society such as ours, and will, to the best of their ability and experience, be grateful to the host country that provides a new life, and a new way of life, for them and their children.

That is how evolution works.

There are nine fundamental human needs to which we have evolved as human beings. They are: Permanence; Protection; Participation; Understanding; Affection; Creation; Leisure; Identity and Freedom.

Immigrants, whether asylum seekers or not, as human beings, seek to meet those needs, as we all do. Australia’s history shows that immigrants have created this country and will continue to do so.

I wrote recently that Twitter is at the heart of our democratic process. Hyperbole? Perhaps, but today’s postings indicate a furtherance of that proposition.

Something new evolved – a struggling narrative emerging out of the bog of our current political discourse.

As with all narrative that proposes to articulate something new, the struggle was evident, but very encouraging.

It was evident that the intention of those who participated, was to put forward their fledgling views on something significant to all Australians.

As with all fledgling attempts, whether it be learning to fly, or to make good scones, or to write song lyrics, there was both understatement and over-statement, apologetic and hubristic responses – as is expected when ever we encounter opinion that is contrary to our held views, and we struggle to step up to the new idea. While there were defensive responses, it is true that even in defensive posture, at least those contributors were engaging in the conversation

At the heart of this exchange, was a true and genuinely felt expression that there is something awfully wrong (and I do mean “awfully”) with our political discourse in regard to asylum seekers, and also, by implication, and significantly, in regard to all immigrants who have come to this country.

There was an emerging discussion to postulate the alternative view – that immigrants have served this country well and continue to do so; that there are many tasks that need to be completed; that immigrants can assist in our completing those tasks, for the benefit of all; that there is a willful denial of those possibilities by government.

The Department of Immigration, for years, from the day of Arthur Calwell, has addressed ethnic groups to propound the benefit of immigrants to Australia. I know this for a fact because I heard many of those speeches when working for an ethnic arts organisation, and I also eventually, came to write those speeches for the department.

It all begs the question: Whenever, and why, did the department of Immigration ever change its mind on this? While each of us may have our own response to this particular question, I will leave that discussion for another day.

In today’s Twitter conversation there was an attempt to re-articulate that view, and to affirm that immigrants have been, and continue to be, good for our country. It was a brave point of view to put forward in our current climate.

May the conversation continue and may many more join us, for it is a conversation that would do us good to have – a conversation in which the Twitterati have had the courage to engage.

Thus, we “bed-wetters” who write “electronic graffiti”, continue to be the heart-beat of our democratic processes.

I write in response to your article which was published in the Sydney Morning Herald on Friday 1 May 2015.

As President of our Australian Human Rights Commission, your comments on the Constitutionally Implied Freedom of Political Communication will have weight in the public domain. However, given the errors in your analysis, I am taking the time and trouble to respond to your remarks. I do so for three reasons, in self respect, to correct the record, and in the public interest.

Let us be clear. The Constitutionally Implied Freedom of Political Communication has strict and particular criteria. It is not a ‘right’ as you correctly say, but it provides immunity from adverse action should a person be punished for criticizing government, politicians, or government policy. It is not to be conflated with the US style ‘freedom of speech’ nor even the laws of defamation generally, nor even to the provisions of s18 of the Racial Discrimination Act under which Andrew Bolt was sued and found guilty. Yet, in your analysis, you conflate these separate aspects.

You say:

While, in practice, everyone is free to say and write whatever they like, this freedom is significantly qualified by exceptions. Prohibitions abound in respect of statements that are libellous or slanderous, in contempt of court, a breach of copyright, obscene or seditious, or that incite mutiny, commission a crime or disclose official secrets.

It is a mistake to conflate these very separate and distinct legal frameworks as you do in your article, as it creates confusion, instead of creating clarity.

As you correctly say, the constitutional immunity (although you do not use this word) is designed to permit citizens to engage in our democratic process without fear of adverse repercussion. Were this not to be so, our democratic processes would be wounded, and rendered unreliable.

You cite my case, relying on a journalist’s report, which itself contains errors. That you would be so cavalier about selecting the sources upon which you rely to discuss such an important issue, is to be regretted. For example, you defame me when you repeat the journalist’s claim that that I made “trenchant criticisms of guards at immigration detention centres” This is not correct. I made no criticism of guards. I made criticism of the detention centres per se—and I still do.

Your purpose in citing my case, when discussing the SBS McIntyre case, is to correctly observe that in my case, the court decided that there is no unfettered freedom. You cite the court to say: “even if there be a constitutional right [to freedom of political communication, it does not provide a licence to breach a contract of employment”.

What you are not expected to know, and one of my reasons for writing to you, is that Neville J, before making his judgment, invited the parties to make comment on this very point—whether there may be any legislative fetter on the implied freedom and if so, to what extent and under what conditions.

Both parties responded. I argued that, yes, there may be a legislative fetter on the implied freedom, but that the legislative fetter, so as not to be struck down by the court as invalid, must be “reasonable, adapted and to a legitimate end”.

To my utmost disappointment, and subsequent detriment, Neville J totally ignored these submissions—as if he had not asked for them at all, and as if I or the other party had not made them at all.

I had concluded in my submissions that it cannot be a legitimate end to create a class of persons who may not criticize government as private citizens. Yet, in a an entirely heroic way, in a true enactment of Pontius Pilate, Neville J decided that such a question was for a higher court anyway, thus failing to properly consider the question before him.

The question has never been put to the High Court of Australia for it takes money, courage and time to take such action, and I was in no position to be rendered bankrupt by such legal proceedings. The only correct thing to say, is that the law is not clear—that it has not been tested.

The other error that I think is very misleading for you to make publicly, is your assertion that an employment contract will trump the constitutional immunity—that the ‘water will rise above its source’. Given that the employment contract for public servants derives from the Public Service Act, am I to understand that you are of the view that the Public Service Act is immune from being struck down by the High Court, in the event that an employee’s actions to enter political discourse as a private citizen are to be punished by termination of employment. Neville J was wrong to make this statement, and you are wrong to repeat it.

While in the US one may contract out of the right to freedom of speech, to suggest that this is the case in Australia is misleading. I know of no law that is permitted to rise above the Constitution. While the question of an employment contract vis-à-vis the implied freedom has yet to be heard, it would be wrong to expect that the Public Service Act would not be struck down by the High Court as invalid where it puts the employment contract higher that the constitutional provision.

Indeed, I am truly alarmed at your statement that “In principle, it seems a reasonable constraint on our freedoms that we should abide by the ethics, values and standards of our employers”. It does beg the question: Even where those ethics, values and standards are unconstitutional?

You say that:

“While we may say what we please, subject to defined prohibitions, a practical, chilling outcome of freedom of speech is that we must suffer the consequences if that speech is also a breach of an employment contract”.

This is entirely contradictory to the constitutional immunity, for an employment contract cannot rise above the constitutional immunity.

The other error of which I do not expect you to be appraised, arises out of the comments that you make in respect of the allegations against me for ‘outside employment without permission’. You say:

“It did not help Banerji’s case that her tweets occurred while she was working for another employer, without the permission of the Department”.

Evidently, you have relied upon the journalist’s article to make this comment, yet this is a misstatement of the facts, and defamatory. I was not working for another employer. The allegation was ‘thrown in for good measure’ by the author of the complaint against me, as the record shows. The allegation was made on the basis of out-of-date online information about my work in private psychoanalytic practice that I conducted years before my being employed by the department.

That an employer should so defame an employee, in an act of bitter retaliation after an employee makes a legitimate complaint about bullying and harassment in the workplace, and that it should be the employee to suffer detriment, is an act of bastardry, if not a failure of legal process.

While the department’s decision makers were quick to deem me in breach of the Code of Conduct for having done nothing wrong, being in fact, a longtime and staunch supporter of workers rights, they were not so prepared to see that my manager’s conduct was itself in breach of that same code of conduct. You cite the Public Interest Disclosure Act (2013) (Cth) which may be limited in its application. I am not sure if this applied in my circumstances, but there was protection for me under the Public Service Act.

While the Public Service Act provides for an employee to be protected from adverse action should she make a complaint about workplace practices, the decision-makers in the department did not offer such a protection to me, conveniently ignoring that particular provision of the Public Service Act—to my detriment.

You make reference to the fact that Australia does not have a Bill of Rights to protect freedom of speech.

Yet, what is not generally known is that we do have a Bill of Rights which, unlike that of the United States, was adopted by the colonies according to the Doctrine of Reception. In the ACT that 1688 Bill of Rights is on our legislative register as current law. We also have the Human Rights Act 2004, which, among other things, declares that no person should be attacked in her reputation.

It is also not generally known that the 1688 Bill of Rights is the document from which other ‘rights’ bills and conventions, (including that of the US) are drafted. In Australia’s case, we have a special relationship to that 1688 Bill of Rights, for unlike the United States, our very own constitution flows from this 1688 Bill of Rights, rendering a further Right to Free Speech superfluous.

In all, your final conclusion is alarming. You say:

‘It is probable that the Banerji decision reflects Australian law in the absence of any legislation confirming the common law right to freedom of speech’.

This is an entirely misleading statement which muddies the waters of discussion. The Banerji v Bowles decision does not reflect the law. The decision was seriously flawed as it did not properly consider the submissions before it. Neville J stated that the question was for a higher court, but so far, the question remains to be heard by the High Court.

There exists, whether we like it or not, whether we understand it completely or not, whether people muddy the waters or not, a constitutionally implied freedom of political communication, which provides immunity from adverse action arising out of any citizen’s freedom to criticize government, its politicians, and its policies as a private citizen. Where that perpetrator of adverse action happens to be an employer makes no difference. Whether we criticise anonymously, or in our own names, is irrelevant. Whether we do it at the pub, or on Twitter, is irrelevant.

To have it otherwise, to have your view of things, would be to risk creating a class of persons who are precluded from engaging in the political process.

This is not a “legimate end”. Instead, it is a truly Orwellian prospect.

Twitter has changed. From its inception when our now Communications minister Malcolm Turnbull tweeted about eating ice-cream at Double Bay, Twitter has evolved to be a platform for public comment—truly an instrument of the implied freedom of political communication, permitting citizens to express our views in our representative and responsible government essential to our democratic processes as defined in our Constitution.

Government, by way of its own Australian Public Service Commission and bodies such as the SBS are either not aware of this implied freedom or are preferring to ignore it. They earnestly write up their social media guidelines warning employees about the danger upon which they embark should they make comment on social media.

The guidelines sound reasonable enough on first reading. Here is an example from SBS:

“While SBS employees have the right to make public comment and to enter into public debate in their personal capacity, it is important to ensure that SBS is not brought into disrepute. Individuals should consider how their posts will be perceived by the community, taking into account the standards which apply to their work”.

In this statement, SBS conflates two essentially different things—the rights and responsibilities of the person as an employee, and the rights and responsibilities of the person as a private citizen—essentially erasing the distinction between the two. The result? By conflating these two aspects, the employer succeeds in conscripting the employee as employee for 24 hours a day, every day.

More significantly though, this statement has the effect of appropriating the employee’s role and function as a private citizen—effectively denying him the freedom to participate in the democratic process.

Fair enough you might say. “Why would you want to bag your employer?” After all, you might say, “I agree with the Sydney Morning Herald journalist who says that an employee is in a master-servant relationship”—“And why would you want to bite the hand that feeds you?”

Well, although the SBS social media guidelines sound benign, there is one thing that creates a minor impediment—that impediment being the implied freedom to participate in the democratic process arising out of our Constitution. This implied freedom provides immunity for a citizen who criticizes government, its politicians or its politics, from any adverse action for having expressed that point of view. Indeed, the High Court has the power to strike down any such legislative fetter to that freedom, unless the court considered that the fetter is reasonable, adapted and to a legitimate end.

So one might ask “Well may the SBS write up its social media guidelines using fine words and a paternalistic tone, but is it acting lawfully in doing so”.

From my point of view, the media guidelines are a form of gas-lighting: “We deny your reality that you have an immunity arising out of the Constitution, should you make critical comments about government, politicians and government policy, in order to assert our own reality that we will sack you if you do – but we will do it nicely and paternalistically…”

The SBS social media policy tips its hat to the possibility that an employee does have the freedom to criticize government, but quickly conflates such an idea with the threat of punishment.

For organisations such as SBS and the APSC, the implied freedom is truly an inconvenient truth, best to be ex-nominated from the social media discourse, best to be camouflaged by fine words, benign at first glance, kind and paternalistic even, until one changes from the ‘Young-lady-in-the Hat’ point of view, to the ‘Old-Crone’ point of view, and sees those benign words for what they really are—a very real and material threat to one’s livelihood – certainly an adverse action and certainly from which action one might desire the constitutional immunity.

And who would want to lose their livelihood, with children to raise and mortgages to pay?

And thus, these equivocal trip-wire guidelines by employers, succeed in stifling dissent, chilling our democratic freedoms—nay, responsibilities—and create a basso-continuo of anxiety for those who might want to express a point of view as a private citizen in a representative and responsible democracy.

In the past, I have referred to Twitter as the heart-beat of the news. I still believe it to be so. Sure, not all Twitter posts are either political, or even critical of government, many posts being the equivalent of eating ice-cream at Double Bay. There’s nothing wrong with that.

But Twitter is so much more!

The irony here is that government departments use Twitter for their own purposes, purportedly to be in communication with stakeholders and clients, but as long as the conversation is a one-way only conversation, these government departments can only be described as using Twitter as a propaganda tool, a gas-lighting tool.

So I say to Scott Morrison, “You may well refer to Twitter users as ‘bed-wetters’” and I say to the Prime Minister, “You may well say that our words are ‘electronic graffiti’, but you are both sadly offensive to a class of persons, your citizens, as well as mightily ignorant of the power of Twitter—to your detriment”.

I would urge you instead, to see the power of Twitter as a very real instrument for citizens to participate in our democratic processes, free to criticize you, your government, and your policies, in a representative and responsible government, arising out of our constitution and re-write those policies. There is nothing to be afraid of, except our points of view. We are engaged in conversation. But given that conversations, axiomatically, are a two-way dialectic enterprise, we would ask that just as we listen to you, you listen to us.

In so doing you will show respect for us, for our constitution and for our democratic processes, and be prepared to hear what we on Twitter have to say, without us being in fear of losing our livelihoods as a result.

The incident of Scott McIntyre’s sacking from his job as SBS soccer commentator for having criticised the ANZAC rituals around the country and the world has again sparked discussion on “freedom of speech” in Australia.

Monday’s Lateline’s program with Emma Alberici featured discussion between the Australian Human Rights Commission’s Freedom Commissioner Tim Wilson and Australian Lawyers Alliance’s Barrister and Solicitor Greg Barns.

When critics say that in Australia we have no right to free speech, they are literally correct. We do not, in the same way that the American citizen has, a “right to free speech” expressed in our Constitution, just as we have no similar “right to bear arms”.

However, we have something else, something that can be more powerful. In Australia, the High Court has decided that we have, arising out of our Constitution, an Implied Freedom of Political Communication, through which all Australian citizens are free to criticise government, its ministers and its policies.

Given that McIntyre’s tweets were critical of government actions in respect of ANZAC and its commemorations, he fulfils this criterion. He was criticising government. And for this criticism, the Constitution will provide him immunity from punishment, provided some essential criteria can be met.

Under the constitutionally implied freedom, any law that might punish us for criticising government or its ministers or its policies, or limit us to any extent in doing so, will be struck down by the High Court as being invalid. Moreover, while US citizens may contract out of their right to free speech in their employment contracts, we in Australia cannot do this.

In Australia we can only speak of the immunity being fettered in some way. That aspect is not in the hands of employers, but in the legislature and the courts. In other words, any law such as the public Service Act which purports to deprive an employee of the freedom to criticise government, albeit through a department’s interpretations of that act into the organisation’s policies, will be deemed invalid.

In the Australian context therefore, the Court will not deem valid any employment contract that purports to trump or deny the constitutional immunity. Also moot are any discussions predicated upon whether the author of the tweets did so anonymously, or in his own name.

In the McIntyre case, a critical element is whether he tweeted as a private citizen in his own time on this own device, or whether he tweeted while at work using his employer’s time and equipment. This can be put simply: was he speaking for his employer, or was he speaking for himself? Were his tweets published on behalf of his employer, SBS?

I have said that the Constitutionally Implied Freedom of Communication in Australia, works differently from the US Constitutional right to ‘freedom of speech”, and that in Australia, it cannot be spoken of as a “right” but as an “immunity” from punishment or detriment should a citizen criticise government, its ministers or its policies.

There is a very sound reason for this.

Our constitution sets the rules for our political processes and those rules are those of a representative democracy. The very integrity of such a representative democracy would be wounded, and rendered ineffective, were any person in the country to live in fear of punishment for expressing a political opinion, were it not for such an Implied Freedom. The reason we say it is “implied” is because the freedom is not spelled out in the words of the Constitution, it is implied from the system of government that the constitution declares – one of representative government.

The Constitutionally Implied Freedom of Political Communication does not provide an unfettered immunity. That is, not all laws that purport to limit freedom of political communication will be struck down. However, the High Court has set down clear conditions for determining whether any fetter will be deemed lawful. There are three conditions: the law must be reasonable, it must be adapted and it must be to a legitimate end.

In McIntyre’s case the High Court might well deem the SBS policies as reasonable and it may even determine them to be adapted (to the extent that there might be a risk in permitting an employee to tweet remarks where his role as an employee speaking on behalf of the employer runs the risk of conflating the two roles so that a reader may be ambiguously understanding his personal private tweets as being spoken on behalf of the employer, thus bringing the employer into disrepute).

But would the High Court be satisfied at the third criteria, that the fetter is to a legitimate end?

Is it a legitimate end to create classes of persons who are effectively locked out of the political process? Are we to say that in Australia, in a representative system of government, there will be certain classes of persons who will not be permitted to participate in their own representative government processes?

For where one person in a class of persons such as journalists or public servants is deprived of the freedom to participate in political communication, it necessarily follows that every person in that class of persons will be deprived of it. To deprive one public servant of the freedom of political communication is to deprive all public servants. To deprive one journalist the freedom to criticise government as a private citizen, is to deprive all journalists of that freedom of political communication.

I am not sure that the High Court would like us to embark on such a very slippery slope whereby there is no foreseeable end to the classes of persons who may, at the stroke of a pen or at the stroke of someone’s whim, be deprived of the freedom of political communication, begging the question “Which other class of persons is to be deprived next? Soldiers? Teachers? Nurses? Builders? Shopkeepers? Political advisers?”

In my opinion I say that if McIntyre was speaking as a private citizen, in his own time, using his own social media device he satisfies the pre-condition for the constitutional immunity. To the extent that SBS might have failed to consider the implied freedom when making its decision to sack him, the employer has failed to make a good valid decision under administrative law by not taking into account an essential and relevant consideration – the resulting decision being flawed and legally wrong.

If McIntyre was tweeting as a private citizen, in his own time using his own equipment, then I would expect him to be protected from punishment by the Constitutionally Implied Freedom of Political Communication.